He was responding to a CNET report based on an ACLU investigation, which revealed that the Department of Justice does not believe it needs a warrant to read private chats or discussions at Facebook, Twitter, etc., and sometimes takes the position that email is fair game, as well. Last month the IRS maintained it did not need a warrant to read emails, but has now backed off that position.

Security agencies often argue that an email or other electronic communication is more like a postcard than a letter. If a government official saw a postcard on a counter, he wouldn’t need a warrant to read it since it and its text are out in the open.

Most people, however, don’t think of their email or private Twitter and other electronic communications as public, and Congressional legislation is needed to catch the 4th amendment up to the 21st century:

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“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

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There’s a line of argument here that gets back to the original intent discussion of the constitution you hear on a variety of topics. It always seemed a bit tendentious to me, given how the very word “eavesdropping” came from the act of loitering under the eaves of house’s roof in order to listen, doing what they could to compromise a reasonable expectation of privacy.

“High” technology, such as a van that can now sit down the street and hoover up your bedroom conversations (or your political ruminations), are no different from that of the “low” technology of an apartment neighbor who put up a water class up against a shared wall 300 years ago.

The pernicious thing about all these capabilities is how they serve to keep people’s mouths shut and new thinking to emerge. Its a kinder & gentler sort of repression, and its far more efficient when people don’t know when and where they are being monitored, which could be anywhere and everywhere.

After all, how could a contributor here not know their thinking was open to review by Big Brother, even years later? One rather small project of the NSA might easily have already generated the code to penetrate the privacy of a website like this, assuming that access hadn’t been surreptitiously been written into the code on the basis of a potential national security necessity.

Great thing about this sort of program, it would be pointed out by the enthusiast supporters, is how it could all be done by an algorithm, that could be triggered to run automatically or ad hoc, at the whim of whomever was at the controls. Imagine the sense of empowerment that would give any one human being, and then just try to imagine how long any one human being would be able to resist using it, for whatever rationalization of the “common good” that inevitably came to mind.

While its easy to cite the simple language of the Fourth Amendment and its Warrant Clause, the reality is that this Bill of Rights section has been interpreted in various ways by the United States Supreme Court over the last several centuries since 1787, when the United States Constitution was adopted as the supreme law of the land.

The Supreme Court in Katz versus United States in 1967 established the test is whether a person has a “reasonable expectation of privacy” in the communications device in question. The landmark Katz opinion established public pay telephones users as encompassing such protection against FBI wiretaps.

“Congressional legislation” is probably not needed since the Fourth Amendment protections always trump whatever an Act of Congress purports to do. However to the extent that courts agree with the Justice Department’s above position, then the U.S. Congress can enact legislation to provide broader protections to citizens from privacy intrusions from law enforcement or other government actors.